BBC Open the Copyright Battle

   Here we are at the start of a new Parliament, and we can be forgiven for thinking that all that nastiness with regard to our copyright and Clause 43 is long gone and behind us.  

But no, regrettably that is not the case.  The BBC, not an organisation to sit on its hands, is out of its corner and probing, already pitching for the next round of copyright attrition.

Copyright: time to change the laws? headlines the BBC website

Before I continue, I believe that  we all have to understand the difference between photographers, organisations such as the BBC, News International, and the end user or consumer, the reader and viewer.   All of us are links in this chain, in some cases, a photographer producing images will also be a consumer, not necessarily of his or her own images, but of other creator's work (images, music, or perhaps written material).

1. Creators - These are the people who actually make the image, the music, write the books and articles. These are the people who (professionally) need paying for the time, effort and equipment that goes into making the works that we all consume.  The majority of these creators are either sole traders or small businesses, perhaps employing one or two assistants directly, and probably hiring, renting, consuming in the course of the production of their work.  However, not all creators are independent freelances, there are still a large number of creators who are employed and the work they create during the course of their employment belongs, or the intellectual copyright, currently belongs to their employer.  In these cases the creators have few if any rights at all.  All of the works created by these creators, freelance or employed, are covered by the current law which protects copyright for the lifetime of the creator and for seventy years after their death.
2. The Users, Exploiters, Manipulators, Dealers, such as the BBC, News International, GNM - These are the (mostly) large corporations, companies and businesses that deal in imagery, in most cases to enhance their own products, or who put together collected created works and sell them on.  Whilst these exploiters do frequently create their own works through the employment of creators, more and more of the actual creating is left to freelance individuals and small companies.
3. The Consumer - who is arguably the most important part of the chain, as without the consumer there would be no professional reason for a creator to create, nor a reason for the 'Users' to use.  The consumer buys the product, surfs the Internet, reads the book etc.
 

So why does the BBC want to change the laws around copyright so much?  For creators it is simple, we want to enforce the existing laws and beef them up a little. How many people, consumers and creators realise that (in the case of photographers), we have to assert the right to be recognised as the authors/creators of our own work?  This should be a simple human right.  Why should we have to insist on a credit alongside our images?  Just look at the site and piece I am referring too, and note that although the 'Stuart Franklin' picture has been credited to his agency Magnum, there is no mention of the photographer of the second image of the 'Globe Theatre'. (This incidentally is now an orphan!)  Stuart should also have been personally  credited for his iconic image not just in the text.

How many people know that even if we do 'assert our rights to be recognised as the authors of our work', that in the case of newspapers, magazines and many books, the publisher is under no obligation to recognise these rights.  UK newspapers and magazines publish - deliberately - thousands of orphan images every week.  And because their work is not acknowledged, how many photographers find that they simply do not get paid by publishers who have used work kept on file, and just sit back and wait for the photograpaher to send an invoice?  No publisher should ever be just allowed to publish a creator's work without the express permission of that creator and without proactively paying for the right to do so.

How many users and consumers realise that organisations such as the BBC, (totally against the spirit of all the copyright legislation we have) routinely insist on stripping the creator of all rights that they have - moral rights and commercial rights, on the 'give us everything or we won't use you' stick (not carrot and stick, just stick and stick).  It might be more palatable for the humble creator if the BBC and other large media corporations were to pay extra for the privilege of obtaining all these extra (and commercially lucrative) rights, but they don't, fees have remained static for over a decade, (whilst costs have more than doubled, let alone taking into account inflation).

 All of us are affected in the current recession and as a result of the banking crisis and ongoing cut-backs, and need to save.  As budgets are cut by the large users, smaller operations find themselves losing work and clients, or at the least those same clients with the lower budgets, insisting on more productivity for, (usually), less remuneration.  In a cut-throat business, where there is a lot of competition, and ironically, a shrinking market despite the huge expansion created via the Internet, creators can't cut their costs any further.

The BBC for instance has started a shift from wholly owned content to taking content from freelances and small companies.  This has an immediate benefit for the Beeb in that employers costs are slashed in one easily achieved stroke.  But this creates a new dilemma for the exploiters, (particularly the BBC).  By using 'freelance' talent rather than 'employing' it, the overheads and costs are hugely reduced.  Bullying in the marketplace keeps the cost down of using those created works, it is often quoted quite correctly that the National Newspapers (for instance) have not increased their commission rates for photographers in sixteen years, (looking at my own receipts and talking to other photographers, suggests that this really is the case).  All this is good for the exploiter, so where is the dilemma you ask?  

The costs have been reduced, freelances are kept on a low fee, but what about exploitation of that work?  Newspapers and the BBC want to be able to use that content across multiple platforms.  Wholly owned content can be used freely, legally freelance content can't. Newspapers are producing websites, and the BBC publishes books, magazines and websites; for these big corporations it is tiresome to have to pay content providers each time they want to reuse content.  They want to save manpower and cost by simply being licensed to use the material as often and in whatever manner they wish.  This should be good for the creators as more licenses should mean more pay.  But no, that is not how the users want the system to work.  They want everything. The easiest way for them to do this is to trample all over the rights of the creator and just insist on 'give us everything' and demand a complete rights transfer.  Totally against the spirit of the 1988 Copyright Designs and Patent Act, the Berne Convention and the WIPO Copyright Treaty

This is the extract from the BBC Freelance Contract

17. Intellectual Property Rights

1. In consideration of the payment of the Fee, the Freelance hereby assigns and otherwise agrees to assign to the BBC absolutely and with full title guarantee, and warrants that any individual, agent or sub-contractor engaged by the Freelance to assist in providing the Product(s) and/or Services have assigned and/or agreed to assign to the Freelance absolutely and with full title guarantee all IPRs (both existing at the date hereof and in the future) in any Product(s) in all languages throughout the Universe for the full period of such rights (including all rights to renewals and extensions thereof).
2. The Freelance hereby to the extent permissible by law, waives irrevocably and warrants that any individual, agent or sub-contractor engaged by the Freelance to assist in providing the Product(s) and/or Services have to the extent permissible by law waived irrevocably the benefits of any provision of law known as “moral rights” (including without limitation any right of the Freelance, the individual, agent or sub-contractor under sections 77 to 85 inclusive of the Copyright, Designs and Patents Act 1988 and under any resale right arising from EU law) or any similar laws of any jurisdiction in which waiver is permissible.
3. The Freelance hereby grants the BBC a non-exclusive, royalty free, irrevocable licence to use and sublicence any IPRs in any Product(s) under the Contract which have not, for whatsoever reasons, been assigned under this Clause 17.
4. The Freelance hereby warrants that there are no potential, threatened or actual claims by its agents or subcontractors in respect of patents or potential patents.

Copyright law is being trashed by the large corporations at the direct expense of the creator.  The BBC will only use photographers if they voluntarily give up their copyright, and then they exploit those rights to the nth degree.  Many will see this as nothing more than economic bullying.  It might also be seen as outright exploitation.  Yes, the creator 'technically' has a choice, but  'give us your images on our terms or we won't use you ever again', in a diminishing marketplace becomes a very difficult choice.

Diminishing marketplace?  How can that be?  There are more images used now than every before in history.  The Internet alone uses uncountable numbers of new images every day.  But with Publishers and corporations employing fewer staff to create, there are more freelances out there.  And with colleges and universities churning out more students every year onto the marketplace, than there are places for them in industry, (more it is said than there are places in the industry). And combine that with the perceived ease of access to digital imagery, (every owner of a digital camera, seems to think that this enables the user to produce the imagery of the thirty year professional), we can perhaps begin to see where some of the problems lie.

Publishers are keen to exploit today's marketplace, and are currently doing so against the spirit of international copyright.  The next step, and this is what we are currently seeing is an attempt to change the law so that what at the moment is merely immoral and reprehensible, becomes legally acceptable.

It isn't just the BBC, much in the Public Eye recently has been the Guardians Rights Grab as outlined in their called 'Freelance Charter'.

We accept your contribution on the basis that you agree to the terms set out below ("the licence") and grant us irrevocably and unconditionally the following rights to use, publish, transmit or license your contribution throughout the world for the full period of copyright in your contribution including all renewals, reversions, extensions and revivals of such period.

They don't demand 'Copyright', but they demand the right to behave as if they have!!

Going back to the BBC piece:

"The issue of copyright has to strike a delicate balance between protecting the creators of music, words, or photographs and the dissemination of such material to a wider public. On the one hand, you want to ensure that the creators get paid for what they create. On the other, if copyright protection is too tight then dissemination of material becomes too restricted."

This sounds very reasonable doesn't it?  Well it does until you actually look at what is being said and who says it, and what the actual facts of the situation are.

I would start off by questioning this 'delicate balance' idea.  It isn't that delicate at all. It is quite simple.  An artist creates a work.  He or she then licenses that work, usually through a middleman, whether it be a recording company, the BBC or a large publishing corporation.  The work is then licensed to be distributed or used through that facilitator.  The license will outline the terms of distribution or use, and the return that the artist may expect.  Nothing difficult about that surely.

The keys words here are "the dissemination of such material to a wider public" which is controlled by our large corporation.  That corporation can easily work within the terms of the contract between it and the creator. A clearly defined agreement tells the user what rights it has and also protects the creator.  It is in the interests of the user of the created work to smudge the definition of copyright, because that can mean greater exploitation for less outlay, something that currently many of the larger corporations appear to be doing by economic force.

This in itself doesn't affect the consumer, who is usually totally unaware of the battles going on between creator and the middlemen.  The only loser is the creator.  The loosening of the Copyright laws will only be at the expense of the creator, the party already under the greatest pressure.  There is no advantage to the creator at all, in fact exactly the opposite. The net gain will be by the middlemen, not the consumer, and at a direct cost to the creator.

Copyright has remained largely unchanged since 1988. The users and middlemen have certainly suffered no loss or restriction and none have yet outlined such loss.  Nor have consumers suffered.  That publishers choose to put so much more content on the Internet on a basically free of charge basis has been a direct benefit to the casual consumer. The problem for the creator is that the publisher wants to pay little or nothing for that free content and wishes it to be made available by the creator for free, and often at the cost of the conventional publication that it may well replace.

Stuart Franklin when talking about images is quoted as saying:

 "We know exactly who is drawing photographs off our web site, we know who is downloading them and who has access to them."

Which suggests that he is talking about all images copied from the Magnum website, but actually what he is referring to , if you listen to the initial interview (BBC Iplayer so it may not be there for long), are clients registered on their site and legitimately downloading images, and indeed in the original interview it certainly sounded to me like he said downloaded, rather than 'drawn', which in any case would be a strange word for a photographer to use when referring to websites.  

As it stands at the moment, it is very difficult indeed to log who copies an image from my own website or any other for that matter.  What can be done however is use software programs to trace images used elsewhere on the web that might belong to one.  Large organisations such as Getty use Picscout, and recoup the not inconsequential cost by suing copyright infringers.

The reference to 'if Shakespeare's works were still in copyright' seem pointless.  As he died over 400 years ago his work is well out of copyright and therefore in the public domain.  If he were alive today, he would be taking advantage of his undoubted talent and exploiting his works commercially, hopefully being dealt with fairly and not having publishers demand all rights to his work - which would indeed be a travesty!

Olivier Laurent's comments are interesting, but it is unclear to what he is referring to from the quotes extracted here, and indeed listening to the original broadcast doesn't help us much either.  What industry is he referring to  exactly? 

Presumably it can't be creators as such because we have no control of the web.  His comment: 

"Twenty years ago you cut pictures out of a paper and put them on your wall - that would be stealing as well," 

Is not strictly speaking factually correct either.  He might have a point if the cutting were exhibited in a public place as artwork, but it would not be against any law I am aware of to display a cutting on a wall in your own home for example.

William Fisher at Harvard University thinks copyright protection is too strict does he.  Well he would wouldn't he, he wants to be able to copy other peoples work and enable them to be incorporated into new mashed up work.  Why should this not be done be asking permission first?

"There needs to be more creative freedom," he believes.  Freedom to use other peoples work that is...

 He goes on:

"The current system is over-protective. It extends copyright protection to too every snapshot, every digital image - billions are being created every minute all around the world and they are all protected by copyright law. ... too much copyright protection impedes cultural conversations and cultural usage"

He continues:

"It would be better if the photographer registered any image be wanted to protect with an online registration system," he says, "and that any other work was in the public domain."

 

This would then mean that any image published on a personal web site on Facebook, on Flickr where the creator was not a professional and had not automatically registered his or her work could be used, by anyone, for any purpose, anywhere.

Amateurs sharing their work with their friends could not do so unless they were willing to risk it being hijacked, not just by some student copying the work to use say in a new painting or artwork, but the BBC or News International copying it and popping it into their own picture libraries for use as needed.  And of course no copyright protection, means no moral rights, and no credits, and absolutely no control over where, or by whom, these images could be used. (Not just the BBC, but what about the big oil companies, tobacco companies or the BNP and other political parties?)

People like William Fisher clearly mean well, but they simply to do not seem to think through these simplistic proposals, or the possible consequences of what they suggest.

But the BBC? I bet they simply love William Fisher, simplistic proposals and all...

Pete Jenkins
www.petejenkins.co.uk
www.onlinepictureproof.com/petejenkins
www.photographerspro.eu/pete_jenkins/       

Member of: The National Union of Journalists

Oppose Clause 43 - Digital Economy Bill

With the changing environment in publishing, the gradual introduction and increase of digital imaging, the increasing popularity of the Internet (World Wide Web) and the pressure which conventional publishing finds itself as a result, it was clear that the British Government would at some stage have to look again at copyright and beef it up for the benefit of the new digital generation. After all with the popularity and availability of networking site such as Facebook, Flickr, MySpace and many others, in the 21st century every one is a potential creator. My eight-year-old son is taught to use the computer and the Internet as part of his education and also publishes items on the web for others to look at and read.


So the Digital Economy Bill was anticipated by many of us, and much of this legislation is of great credit to the current administration. However, as a sole-trader, and a creator in this ‘Digital Age’, I find a number of elements of this proposed bill of great worry to me. I have seen numerous letters from David Mandelson, and have spoken at length to the Intellectual Property Office, and I have heard all the reassurances that they make, but there are a number of issues that remain, none of which seem to have a solution, and all of which will undoubtedly cause huge problems to creators such as myself, and potentially therefore all creators whether they be professional as I am, or merely enthusiastic amateurs as most social networking creators are. All of us, professional or amateur will be affected by this legislation, and are all citizens and voters, either now or in the future (under age creators will face the same problems that those over-18 will.)


The main issue that needs attention is the part of the Digital Economy bill labelled Clause 43. This deals specifically with orphan works, extended collected Licensing and Moral Rights.


The following Organisations Copyright Licensing Agency (CLA), British Broadcasting Corporation (BBC), British Film Institute (BFI), Publishers Association (PA), Association of Learned and Professional Society Publishers (ALPSP), and Educational Recording Agency (ERA), released a statement including the following:


As you are aware, the draft legislative provisions to enable the licensing of orphan works and extended collective licensing schemes have been the subject of intense debate and detailed amendment during the passage of the Digital Economy Bill through the House of Lords.

As the Bill awaits its Second Reading in the Commons, these provisions remain imperfect. But they are a significant improvement on the original Clause 42. As a satisfactory compromise between diverse interests, they should be considered a success.

A nuanced debate of the strengths and weaknesses of the Clause is now academic. The opportunity has passed for it to be amended further. But there is still a real danger that the Clause could be jettisoned altogether, during the wash-up.


We believe this outcome would be catastrophic for the creative industries. The strategic importance of making orphan works available and, for some industries, enabling extended collective licensing schemes, cannot be overstated. Failure to make orphan works available is likely to result in far cruder alternative solutions, which would run the risk of contravening the Berne 3 step test, and which would have far-reaching and damaging consequences for our sectors.

In what way disastrous? The publishers give us no overwhelming argument as to the benefits of this proposed legislation, other than it is a convenient way to exploit material that legally they currently cannot access. It is perhaps worth noting that the ‘creative industries’ they refer to are the actual users and manipulators of created works (all large companies and corporations), rather than the actual creators themselves who produce the work, nor the end users who view it (and pay for it ultimately).


Failure to make orphan works available for commercial exploitation will not actually affect anyone. It doesn’t now, why would it in the future?


Enabling collective licensing schemes is something that is favoured specifically by the BBC, and again is not for the benefit of either the creator, or the end viewer, but a device by which the BBC and other manipulators and users of created works envisage cutting down on the bureaucracy of using works, and at the same time cheapen their use. E.C.L. reduces fees to a common (low) standard value, and eliminates the need to ask permission for use. The most difficult to acquire, the rarest of images, become reduced in value to the most common and the mundane. The creator loses control over whether an image can be used, or indeed how much can, or should be charged. The most difficult to obtain image, taken in the most hostile environment, becomes reduced in value to the simplest snapshot.


When orphan works were first discussed, we (creators) were told there was an ‘orphan works’ problem. It was explained to us that libraries and academic institutions wished to digitally store previously published works and that many of these could not be identified. These institutions wanted to avoided being held legally liable for abusing copyright. Now few creators would argue that there is a cultural benefit to the storage of published works on large cultural databases such as suggested.


Much of the problem comes from the various exceptions in the 1988 copyright Act, in which not only do creators have to assert the right to be recognised (credited) for their work, but in the cases of newspapers, magazines and textbooks the right to be credited was withdrawn in any case. Therefore many of our published works went un-credited and still do. Thousands upon thousands every day.


The original objection to crediting work cited by Publishers was to do with hot-metal type-setting. This has ceased to be an issue for over a decade, and now there is absolutely no reason for a credit to be withheld, other than there is an advantage to the publisher in that an orphan can be created for future exploitation, (I honestly can see no other reason for deliberately withholding credits.)


The right to be recognised as the creator of a work is surely a basic human right, and as such it is difficult to see any reasoned argument against all images and created works being credited on publication, wherever they are published.


If Moral rights were beefed up and made inalienable then future orphans would be eliminated overnight, and if this were backed up by appropriate legislation then lack of credit on the Internet could be dramatically cut as well.


If basic copyright were taught in schools alongside basic computer literacy then those using the Internet and creating works would know that copying is not acceptable without permission. Our education system is possibly the best in the world – let us use it.


Major publishers and organisations such as the BBC conveniently forget how created works come about. If all major publishing corporations continue to squeeze the professional creator in the way that has been done over the past twenty years, professional creators may well find themselves unable to continue to work full-time and maintain a living. Whilst photojournalists have been pointing to the stagnation of Fleet Street rates since 1994 – the commission and space rates have not even kept up with inflation yet the cost of working for a photographer such as myself has almost doubled in that time. Only last week one national newspaper suggested that it wished to reduce rates being paid to contributing photographers for the second time in a year.


Is it too much to ask that Moral rights be made inalienable therefore stopping orphan works being created?

Is it really too much to ask that reproductions of created works get a byline or credit?

Is it really too much to ask that a user ask permission before using or re-using a created work?

Is it too much to ask that users pay a fair rate for created works rather than continually finding new ways and reasons to reduce already low fees?


I think it is about time that we learned to recognise the importance of our creators, most of whom are simple lone traders, people who believe passionately about what they do, and because of their low status in the food chain are vulnerable. Let us not kill the goose that laid the golden egg. We have an opportunity here to improve the working environment for creators, and show the respect that society has for them.


Clause 43 of the Digital Economy Bill is dangerous to creators and could create an environment where:

Extended Collected Licensing controlled by the Publishing industry becomes a standard way of paying for created works

where creators are refused acknowledgements or credits as a matter of course

where creators lose control of their works and have no say in their use or publication

where as a result of the above professional creators become unable to sustain a respectable standard of living


This must be opposed, and if legislation is required then make it legislation that is positive towards creators. Let us not lose this chance – think of the consequences if we get it wrong.


We have pledged, as photographers and creatives, to actively participate in the construction of primary legislation enabling the cultural use of existing orphan works. This legislation should satisfy legitimate needs of museums and conservators, while not abusing the rights or terminating the careers and businesses of the people who produce the "content" that the "creative industries" market.


Pete Jenkins
www.petejenkins.co.uk
www.onlinepictureproof.com/petejenkins
www.photographerspro.eu/pete_jenkins/


Member of: The National Union of Journalists